Edward Snowden's father told Russian TV today that if his son returned to the United States he did not believe "a court would be fair". Mr Snowden senior is absolutely right, but it is important to be clear why he is right. An American court trying Edward Snowden would not be fair, just as the court that has just convicted Bradley Manning has not been fair, because American law in this area is not fair. A trial may be procedurally perfect and a judge may go out of his or her way to ensure the rights of the accused and counsel are protected. But if the law is unsound this is all a structure built on sand.
The Espionage Act was rushed on to the statute book in 1917, shortly after America entered the first world war. Much of it was lifted from Britain's Official Secrets Act, and it was done at a time of hysteria about traitors and German spies. Although amended since, it still reflects its origins in those distant days. But neither Manning or Snowden slipped the plans for a new submarine or the figures for howitzer production to a man on a dark street corner with his collar turned up and his hat pulled down. They had no wish to betray their country. Rather, they wished to prevent their country from betraying itself. In the course of their work they had come across evidence of what they saw as wrongdoing, of behaviour not worthy of the US or consonant with the values that country claims to uphold.
Admittedly, Manning went beyond this when he facilitated the release of diplomatic cables that may have revealed a certain amount of American tolerance for unsavoury regimes, but were mainly of note because they showed that US diplomats were both well informed and morally aware. Still, there was no traitorous intention.
American law, and ours is not much better, has not got the balance between treason, confidentiality, and the public interest right. The Espionage Act, like the Official Secrets Act after revision in 1989, does not allow a defence of public interest, although representations on that ground may now slip into the arguments, likely to be long, about Manning's sentences. Why should public interest stop at the entrance to the Pentagon or on the doorstep of the Ministry of Defence? True, governments have good reasons for it stopping there, in the shape of genuine fears about what might be revealed to hostile states or organisations.
They also have bad reasons, wishing to gag critics or to conceal from their own peoples policies for which they have no mandate or which they know would attract disapproval and lose them votes if they became widely known. It is worth noting that while American public opinion is very set against spies, it is already moving on the substance of what Manning and Snowden have revealed, in particular on the reach of the surveillance state. That opinion will almost certainly approve, too, of the acquittal of Manning on the charge of aiding the enemy, which would have been a disastrous precedent, causing serious collateral damage to the freedom of the press.
Judges, asked whether there should be a public interest defence, shrink from making decisions on national security they believe are beyond their competence. This must change, with hundreds of thousands these days having access to secrets, real or supposed. Those who presided over the expansion of the intelligence industry, in which astronomical masses of data are daily processed by both humans and computers, have not thought this through.
How can you bring into what used to be a tight little world of like-minded people so many bright, often haphazardly recruited, youngsters with modern ideas about free expression and an inclination to make up their own minds, and expect things to go on as before? Disclosures on a grand scale have been the inevitable consequence. The answer lies in a better management of that intelligence industry, and changes in the law to recognise the public interest defence when disclosure occurs. It does not lie in the brutal punishment of one fragile young man.
